Government-Mandated Racial Discrimination in Guam Should End

Hans von Spakovsky /
February 04, 2013

In a disappointing miscarriage of justice that will take months to overturn, a federal judge recently dismissed a lawsuit against Guam over its clear racial discrimination in violation of the Fifteenth Amendment and the federal Voting Rights Act.

The Center for Individual Rights and Christian Adams, a former Justice Department civil rights and election lawyer, filed suit in Guam’s federal district court on behalf of retired Air Force Major Dave Davis. Davis, who has lived in Guam for 35 years, attempted to register to vote for a plebiscite over Guam’s future relationship with the United States, but his voter registration application was rejected by the island’s Election Commission solely on the basis of his white race.

The Commission claims Davis a “non-native” and that his non-native ancestry is a sufficient ground to discriminate against him. Only Chamorros, the racial designation given to the natives who originally inhabited Guam, are allowed to register to vote for this particular plebiscite. Not only was Davis refused registration, but under Guam law, he could have been prosecuted for the misdemeanor of “willfully” trying to register with the Guam Decolonization Registry, whose name is meant to convey the outcome that the law is designed to achieve. This discriminatory Registry was established by the Guam Legislature, which also provided that the plebiscite be held at “a general election at which seventy percent (70%) of eligible voters have been registered as determined by the Guam Election Commission.”

The legal dispute is over who is eligible to register and vote. Federal district Judge Frances M. Tydingco–Gatewood, who issued the decision, is able to register without any trouble because she is Chamorro, as she proudly explains on her official biography. Her Chamorro background has no clear connection with her erroneous ruling, but it highlights that Chamorros in Guam are not a minority population without power or influence. Chamorro officials predominantly govern the Island, make the laws, and stand in judgment over them.

Judge Tydingco–Gatewood dismissed the case without reaching the merits of Davis’s claim. Instead, she erroneously ruled that Davis had no standing to sue and that his claim was not yet “ripe” for consideration by the court since Guam has not scheduled a date for the plebiscite in which Davis would be denied an opportunity to vote.

Rejecting a number of applicable legal precedents raised by Davis, the judge mistakenly ruled that Davis lacks standing because he was unable to show any injury from being refused registration for the plebiscite that is not yet scheduled, even if it “is more likely than not to occur.” Yet, after the Voting Rights Act was enacted, the idea that a federal court would tell black voters in Alabama or Mississippi that they suffered no injury when they were refused registration because any election represented only a “future” occurrence boggles the mind.

The judge never addressed a number of relevant cases, such as Havens Realty Corp. v. Coleman, which held that a citizen is injured when federal statutory rights are abridged. In Havens, the Supreme Court determined that civil rights housing “testers” were given the right to sue when they were told no apartments were available to black testers and white testers were told otherwise. Even though the testers were just masquerading as customers and had no intention of actually renting an apartment, federal law gave them a statutory right to bring a lawsuit.

Similarly, federal laws against discrimination in registration give citizens throughout the U.S. the right to sue when different qualifications to register are established between races and ethnic populations. And multiple federal laws protect against discrimination in registration qualifications, not just discrimination in the actual voting process.

The judge also ignored Catholic League v. San Francisco, in which the Ninth Circuit Court of Appeals (which covers Guam) ruled that the Catholic League had standing to sue based on a stigmatic injury. The City of San Francisco had adopted a resolution condemning the Catholic Church’s stance on same sex couples adopting children, and the Ninth Circuit determined that the challenge was ripe and standing was appropriate because a stigmatic injury occurs when government relegates some citizens to second-class status. There is no question that Guam has relegated non-Chamorro residents to second-class status by barring them from participation in the plebiscite, especially since the plebiscite may eventually have a big impact on their lives as well. At least that is the intent of those in the Guam Legislature who enacted it.

Judge Tydingco-Gatewood likewise didn’t discuss the Supreme Court’s decision in Rice v. Cayetanno, which invalidated a race-based voting scheme in Hawaii closely analogous to the one in Guam.

The case will almost certainly be appealed to the Ninth Circuit and beyond if necessary. The fierce criticism heaped on Davis by local government officials and legislators in Guam for his challenging the registration law provides additional support for his claim that non-Chamorro citizens are unfairly treated by Guam officials, and it is quite disappointing in any event.

If anything should cause Guam to tip over, as Representative Hank Johnson (D–GA) infamously worried, it would be Guam’s official island policy of racial discrimination, which needs to end.